Before
the Court is Defendant Hector Guadalupe Lozano's motion
to suppress evidence (D.E. 12). Lozano is charged by
indictment (D.E. 6) with (1) one count of possessing with
intent to distribute more than fifty grams of
methamphetamine; and (2) one count of possessing with intent
to distribute approximately fifty grams of heroin. For the
following reasons, the motion is DENIED.

FACTS

After
the landfall of Hurricane Harvey, widespread power outages
led various communities in South Texas to impose curfews
restricting travel at night. On the night of August 31, 2017,
Investigator Luis Reyes of the Texas Department of Criminal
Justice was patrolling the area around Ingleside, Texas,
where one such curfew was in place. Officer Reyes normally
works in the Houston area but was re-deployed after the
hurricane.

At
approximately 11:15 p.m., Officer Reyes observed a
sports-utility vehicle driving without its headlights, in
violation of both Texas law and the local curfew. Officer
Reyes pulled the vehicle over and began speaking with the
driver, Lozano. Lozano did not have any driver's license
or proof of insurance with him, so Officer Reyes asked
Lozano, who was accompanied by a female passenger, to step
out of the car and for his name and date of birth. By this
point, Officer Reyes had been joined at the scene by Aransas
Pass police officers, who ran a computer check using the name
and date of birth Lozano had given. The computer check came
back clear. Officer Reyes asked Lozano if he would consent to
a search of his vehicle, which Lozano declined.

Over
the course of the stop, it emerged that Lozano had given
Officer Reyes a false name, and that in fact, he had open
warrants and several thousand dollars in unpaid fines.
Officer Reyes could not recall at the suppression hearing
what name Lozano had first given or exactly how the discovery
was made. Officer Reyes then arrested Lozano for having given
him a false name. See Tex. Penal Code Ann. §
38.02.

After
Lozano was arrested and seated on the curb, the officers grew
concerned for his health, as he was sweating heavily and said
that he was diabetic and felt faint. He accepted water and
candy from the officers on site. Emergency medical
technicians were also summoned to check his medical
condition. They concluded that he did not require further
treatment.

A
canine officer, Deputy Olan Brooks of the San Patricio County
Sheriff's office, subsequently arrived at the
scene.[1] The dog alerted to the driver's side
door, and the ensuing search discovered the fruits Lozano
moves to suppress.

ANALYSIS

Lozano
does not challenge the constitutionality of the initial stop
or contend that the stop was unconstitutionally prolonged.
Nor does he claim to have been arrested unlawfully. He solely
challenges the warrantless search of his car.

It has
long been the law in the Fifth Circuit that “a
‘dog alert' is sufficient to create probable cause
to conduct a warrantless vehicle search.” United
States v. Dovali-Avila, 895 F.2d 206, 207 (5th Cir.
1990); see also United States v. Rodriguez, 702 F.3d
206, 210 (5th Cir. 2012) (“‘[A]n alert by a
drug-detecting dog provides probable cause to search [a
vehicle].'” (quoting United States v.
Sanchez-Pena, 336 F.3d 431, 444 (5th Cir. 2003))). The
Court does not perceive anything that distinguishes this case
from the many cases upholding warrantless vehicle searches
following a positive drug dog alert. Therefore, there is no
constitutional injury requiring suppression.[2]

At the
suppression hearing, Lozano focused on the reliability of the
dog's alert. On direct examination, Deputy Brooks
testified that he has been part of the San Patricio County
Sheriff's office for approximately six years, and a
canine officer for approximately three. His canine partner
was certified by Worldwide Canine of Spring Branch, Texas,
where Deputy Brooks also received his initial three-week
training as a canine officer. Deputy Brooks and his canine
partner undergo approximately eight hours per month of
additional training, and are required to recertify every
year, most recently having recertified in March 2017. Last
year, Deputy Brooks and his canine partner placed twentieth
out of seventy-seven teams at a law enforcement canine
competition in Brownsville, Texas. To the extent that it is
necessary to establish a particular dog's reliability in
order for its alert to supply probable cause, Deputy
Brooks's canine partner's credentials have been well
established. See Florida v. Harris, 568 U.S. 237,
246-47 (2013) (“If a bona fide organization has
certified a dog after testing his reliability in a controlled
setting, a court can presume (subject to any conflicting
evidence offered) that the dog's alert provides probable
cause to search.”); Rodriguez, 702 F.3d at 210
(“‘[A] showing of the dog's training and
reliability is not required if probable cause is developed on
site as a result of a dog sniff of a vehicle.'”
(quoting Sanchez-Pena, 336 F.3d at 444)).

None of
Deputy Brooks's testimony on cross-examination gives the
Court any pause. For instance, Deputy Brooks acknowledged
that, even though the contraband was hidden in the center
console and thus equidistant from the driver's side and
passenger's side doors, his dog only alerted to the
driver's side door. Deputy Brooks attributed this to the
wind.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;Similarly,
as he was questioned regarding his written log of
investigative activity, Deputy Brooks agreed that in many
cases after his dog positively alerted, the ensuing search
either did not find any drugs or else found a de
minimis amount of marijuana residue or
&ldquo;shake.&rdquo; Deputy Brooks credibly testified that
such alerts were often attributable to residual odors from
recently-consumed contraband, and that many suspects admitted
to having recently used drugs soon after his canine partner
alerted. See Harris, 568 U.S. at 245-46 ...

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